Legacy system: your questions answered

Up to 100 Local Planning Authorities (LPAs) are currently preparing for submission under the legacy system (2012 regulations) by the final deadline of 31 December. This closing stage can still throw up plenty of questions, for example: Will the new National Planning and Policy Framework (NPPF) affect your examination? Do you need legal representation at hearings? And what does a firm 31 December deadline actually mean in practice? Our Professional Lead for Plans Examination, Simon Berkeley, addresses these and other popular legacy system topics.

Common questions about legacy system plans 

In the summer I sat down with colleagues for a webinar about legacy system local plans. As the December 31st deadline approaches, I wanted to share some of the queries that came up in that session, and a few that have arisen since.

1. The 31 December 2026 deadline 

Unsurprisingly, one of the first questions we tackled in our webinar was about the practical consequences of not hitting the submission deadline. A straightforward question on the surface - but many of you will have noted that technically the regulations do allow some flexibility, in that they allow the Secretary of State to make a direction to apply a new deadline date. If your authority is at all worried about hitting that deadline, my advice is to complete your pre-examination checklist and share it with us as early as you can. You should also contact the Ministry of Housing, Communities and Local Government (MHCLG) with any concerns relating to the deadline and your checklist response may assist you to articulate these.  

Having said that, I want to be clear about how that provision should be treated in practice. Exercising the Secretary of State's discretion is likely to be very much the exception rather than the rule. So please, do not plan for a submission that's just a little bit after the 31st of December. Every authority should be treating this as a firm deadline. It's also worth noting that the Planning Inspectorate itself has no discretion to accept late submissions.

Do not plan for a submission that's just a little bit after the 31st of December

2. What makes a submission valid? 

On the legal requirements for a valid submission, the position is set out clearly in legislation. The Planning and Compulsory Purchase Act 2004, along with the 2012 local plan regulations, specify precisely what needs to be submitted:  you must submit your plan, you must submit your sustainability appraisal, and other specified items besides. The legacy system is winding down but there is no change in the quality of plan required or the way that the tests of soundness are applied.  Beyond the legal minimum, though, there are two things I'd really encourage you to think about. Again, I’ll stress the importance of the pre-examination checklist. Second, and just as important, is having your programme officer in place prior to the start of your examination.   

3. NPPF changes won't affect your legacy examinations

Many of the questioners back in early summer were asking about the expected update to the National Planning Policy Framework (NPPF) and that new version has now landed. I can offer some reassurance here. It's clear that the new NPPF will apply only to plans in the new system. Plans in the legacy system will continue to be examined against earlier versions of the NPPF, and related national policy (such as the Planning Policy for Traveller Sites).  

Plans in the legacy system will continue to be examined against earlier versions of the NPPF

4. Proportionate evidence: clarity over volume 

When we're asked what a ‘proportionate evidence’ base actually looks like, I always come back to the same underlying principle: proportionality is all about the scope, depth and currency of evidence being proportionate to the local context, and the extent to which the issue in hand affects bringing forward the development that's needed. Crucially, clarity often matters more than sheer volume. Sometimes proportionate looks like things being clearly explained, concisely. That can often be more important, frankly, than volume, particularly where the evidence in question is relying on planning judgements. Do be very clear about that. Our Procedure Guide (legacy system) provides some good general advice on the proportionality and currency of the evidence base.   

5. Viability evidence: transparency over certainty

 On viability evidence involving future or uncertain funding, my advice centres on transparency. Your assumptions really need to be set out transparently, and really clearly articulated, so that the inspector can be in absolutely no doubt as to what assumptions have been made, and how critical those assumptions are.  We do recognise the real-world limits of certainty around viability and around sources of future funding, and we absolutely recognise that. But at the same time, we also expect realism, and it's right that we do.  The Planning Practice Guidance on viability remains an important element of how these matters are tested at an examination along with the recent letter to us on this topic from the Minister.   

6. Cross-boundary engagement still matters, even without the duty to cooperate 

With the duty to cooperate now removed, a lot of authorities have asked what evidence of cross-boundary working is still necessary. My answer is that the need for engagement itself hasn't gone away. It's still very, very important. The government's been clear that yes, the duty has gone, but you should still continue engaging with your neighbours, with statutory consultees, and so on.  

In evidential terms, little has really changed. You're still going to need to demonstrate what engagement you've done, with whom, and when, and what the outcomes were. Statements of common ground and memorandums of understanding also remain important. 

the need for (cross-boundary) engagement itself hasn't gone away

7. Gypsy and Traveller site provision 

The question was posed in the webinar: what is the advice where no deliverable Gypsy and Traveller sites are coming forward? We'll first look at whether the site search has been exhaustive. The Inspector is going to want to make sure that, in effect, the authority has done all that it reasonably could to identify sites in the first instance. 

If not, the next step is neighbouring authorities. What has the authority done in terms of engaging with neighbouring authorities, and asking them whether they might be able to help meet that need? Evidence of engagement with landowners is also expected. A policy-based approach, rather than allocating specific sites, is possible, but it's harder to justify at scale. That approach needs to be justified, and it can be, perhaps, where the identified need is relatively very small, but it's unlikely to be found justified where you've got a much larger scale of need to meet.  If a policy-based approach is included in your plan, an Inspector is likely to look at the Council’s track record of delivering sites through the planning system on the basis of any similar policies in previously adopted plans for the area.  This may help with a consideration of the overall effectiveness of such an approach.  

It's also worth remembering that the Public Sector Equality Duty becomes engaged in relation to this issue as well – both for the Council and the Inspector.  

8. Legal representation at hearings: helpful, not required 

On legal representation, I want to be clear: it is absolutely not a requirement. No authority, or any participant for that matter, needs or must have legal representation at hearings. That said, in my experience, advocates can add real value. They have particular skills in marshalling evidence and bringing it forward in a very logical way that's easy for the Inspector to follow.   The hearings remain inquisitorial Inspector-led discussions rather than adversarial, so preparation counts for more than representation. We're focused on the evidence and the clarity of the arguments put, not on the qualifications or stye of the presenter. Good preparation can be more important than representation in that respect.  

No authority, or any participant for that matter, needs or must have legal representation at hearings

 9. Updating evidence mid-examination: leave it to your Inspector 

On whether to refresh ‘dated’ evidence during a lengthy examination, my advice is once you have submitted to let the process run its course. The Inspector will direct the authority on this, so authorities don’t need to be worrying about this unprompted. Given how close we are to the legacy deadline, Inspectors are likely to look for alternatives to requiring fresh evidence. We're far more likely to look at what alternative approaches we might be able to take, such as whether this plan needs to be updated early, even perhaps as soon as it's adopted if that would appear to be an effective and reasonable option. My key message here is: if you're at examination, leave it to your Inspector.  

We also covered housing need and requirement, site selection and spatial strategy and housing land supply and trajectories. Watch the full webinar here. 

https://planninginspectorate.blog.gov.uk/2026/10/07/legacy-system-your-questions-answered/

seen at 18:32, 7 October in Planning Inspectorate.